US Immigration court system (EOIR) has launched a new online case status check-up system. By putting one’s alien number into an online field, a person can get access to the court’s information system regarding one’s case. The link for the system is: https://portal.eoir.justice.gov/InfoSystem/Form?Language=EN
The test of the system revealed that it will not contain copies of any decisions, but will provide general status of the matter and future hearing dates, which can be handy, especially if you do not want to call 800 phone number: 800-898-7180 (TDD 800-828-1120) . The only issue is that at times when the proceedings were administratively closed, the system states that the case is currently pending without more.
The A number based system is a good option for at times a confusing 800-phone system. However, it does not replace or substitute law requirements that a person in removal proceedings shall receive a notice of the date and time of their hearing. It is especially true nowadays when courts are transitioning from the “status” dockets, converting them by default into Master hearings without sending appropriate notices to the attorneys or persons in removal proceedings.
It is official: pregnant ladies will be denied U.S. tourist
visas! This is the essence of the new rule that was published by the U.S.
government on January 24, 2020.
“Birth tourism” or entering the U.S. for having access to the best and most reliable medical care has been around for decades. Ladies all over the world, some having to save money for a long time, came to the U.S. to have assurance that the most important day in their lives and in the lives of their new babies would go as smoothly as possible. While I am not in a possession of any official statistics, I know for a fact that to get a B or tourist visa has never been easy: a person would have to show that they had sufficient funds to sustain themselves in the U.S. and had strong ties with their home country… In fact, one of the purposes of the B visa was to seek medical attention/help in the U.S. Thousands of women used this provision to give birth to the U.S.
It is so happened that the U.S. Constitution provides every baby who was born in the U.S. (with the exceptions of babies of certain diplomats) U.S. citizenship. Basically, regardless of the babies’ mother’s true intentions: to have safe delivery or to plan for the future Immigration to the U.S., the law works to protect the babies born on U.S. soil. And this very provision and threat of “anchor babies” became the reason why recently the U.S. Administration decided to ban pregnant ladies from coming to the U.S.:
“Permitting short-term visitors with no demonstrable ties to
the United States to obtain visas to travel to the United States primarily to
obtain U.S. citizenship for a child creates a potential long-term vulnerability
for national security.” “ By obtaining a child’s U.S. citizenship
through birth tourism, foreign nationals are able to help that child avoid the
scrutiny, standards, and procedures that he or she would normally undergo if he
or she sought to become a U.S. citizen through naturalization.” In other words,
they help newborns!
Hence, “a
consular officer shall deny a B nonimmigrant visa to an alien who he or she has
reason to believe intends to travel for this primary purpose. “ says
the new rule.
To be fair, the rule tries to address the issue of many women
trying to come to the U.S. simply to seek high quality medical care which is
often unavailable in their home countries. It says: “ Under the primary purpose
test, a consular officer must consider a visa applicant’s primary (or
principal) purpose of travel to evaluate the applicant’s eligibility for the
requested visa classification. All of a visa applicant’s intended activities in
the United States are considered in determining the applicant’s eligibility for
a visa under standards set out in INA 212 and 214(b), 8 U.S.C. 1182 and 1184, and other applicable visa eligibility
standards. The Department’s FAM guidance to consular officers on this
point—that an “alien desiring to come to the United States for one principal,
and one or more incidental, purposes should be classified in accordance with
the principal purpose”—has remained unchanged for well over 30 years. Compare 9
FAM 41.11 N3.1 (August 30, 1987) with current 9 FAM 402.1-3 (last revised May
21, 2018)”
But if we have to measure on a scale of justice a visit to see
a family member vs. delivering a baby, it is obvious that delivering a baby
purpose will always outweigh any and all other legitimate purposes for travel. So,
it is pretty obvious, that the ladies will not be able to come to the U.S. to give
birth anymore. Moreover, if a lady “looks” pregnant she will be denied a visa
as well!
While some may be annoyed at the fact that ladies come to
the U.S. to give birth in the U.S. hospitals to produce “anchor babies”, I have
to respond that for such a baby to be able to sponsor a mother or a father, the
baby has to be 21 years old, reside in the U.S. and have sufficient income!
Which, in most cases, simply will not be possible. The baby ban will affect not
those who are crossing the border or are victims of criminal activities, but
those who tried to follow the law and actually applied for a visa, arranged for
medical treatment facility and doctors and could demonstrate that they could
afford their stay in the U.S.
Beneficiaries of the TPS (temporary protected status) are
allowed to obtain advance parole: an authorization that allows them to travel
abroad and be paroled back into the United States. Many have used this opportunity
to obtain a “paroled” status necessary for adjustment of status under INA
section 245 which states that one of the qualifications for adjustment of
status is for a person to be inspected and admitted or paroled into the United
States…
For some time, TPS holders in removal proceedings and with final orders of removal were able to obtain advance paroles and travel on them as well. According to the author’s information, some USCIS offices were accepting such a return on advance parole as an execution of the order of removal and authorization to come back to the United States, opening the door for such travelers for adjustment of status with USCIS. Recently, USCIS issued yet another policy closing the door to such an interpretation of the travel on advance parole for the TPS holders with orders of removal/deportation.
Specifically, the policy states that when the TPS holder travels
on advance parole and returns to the US, his/her status does not change; if a
TPS holder had an order of removal or deportation, he would still be considered
as having an unexecuted order; and if removal/deportation proceedings were
pending at the time of travel, they remain pending at the time of return.
Now, for an adjustment of status, a TPS holder without the order or removal, can satisfy the paroled requirement if he/she travels and returns on TPS. A grant of TPS by itself does not cure an alien’s entry without inspection or constitute an inspection and admission of the alien (in most jurisdictions). If an alien under TPS departs the United States and is admitted or paroled upon return to a port of entry, the alien meets the inspected and admitted or inspected and paroled requirement provided the inspection and parole occurred before he or she filed an adjustment application. The applicant, however, must still meet all other requirements to be eligible for adjustment.
So, what would you do if you traveled on TPS but you have pending removal proceedings? Perhaps, you may be eligible for an adjustment before the judge. If you have an old removal order: it will be considered unexecuted, and legal analysis will be more complicated depending on circumstances.
If you need a consultation regarding your options, please call 917-885-2261 to book an appointment.
About a month ago USCIS announced that it would stop the
Deferred action program for non-military members. The public reacted by convincing
USCIS that the deferred action program should be restored. Several weeks later,
USCIS agreed.
What is Deferred Action?
Deferred action is a government’s act to accommodate an
individual even though he/she does not have a recourse under the current
Immigration law. As a rule, deferred action happens in a form of a parole. It
can be parole in place; parole instead of a visa/status. Often, deferred action
is granted to a person who is in removal proceedings. But USCIS also practices
an affirmative deferred action: the one for individuals who are not in removal
proceedings. Government regulations characterize deferred action as “an act of
administrative convenience to the government which gives some cases lower
priority.” 8 C.F.R. § 274a.12(c)(14).
Who can apply for Deferred Action?
Anyone present in the US with severe medical conditions,
when the treatment for those conditions is unavailable in their home countries,
may ask USCIS to grant them deferred action in the form of parole which will
allow them to stay in the US without accumulating unlawful presence. Also,
persons whose countries were affected by serious natural disaster, may likewise
apply for deferred action. During the
validity of the deferred action, the person is considered to be safe from removal/deportation.
How to Apply for Deferred Action?
Apparently, there is no centralized, nation-wide procedure
for the deferred action. A person would have to submit the request to the local
USCIS office. A front desk would take these applications and provide a receipt
stamp. An applicant must be out of status in order to file for deferred action.
Applicants will be fingerprinted. There
is no application form and there is no application fee. An applicant will have
to present evidence of the need to stay in the US, for medical deferred action
it would be affidavits, medical records, doctor’s reports. To file, a person typically
also would need to present:
Signed written request
Form G325A
Copies of passport, visa, and birth certificate
2 passport-style photos
Beneficiaries of deferred action can apply for employment authorization.
A deferred action may be granted to the person and his/her immediate relatives.
A deferred action would typically be granted for a period of two years.
In 2011, the USCIS ombudsman recommended that USCIS adopts unified
procedures for adjudicating deferred actions requests. In 2012 USCIS issued a
memo U.S. Citizenship & Immigration Servs., Standard Operating Procedures
for Handling Deferred Action Requests at USCIS Field Offices 3 n.1 (Mar. 7,
2012) (“USCIS Standard Operating Procedures”). However, the procedure itself still
remains largely unknown and varies from office to office.
Asylum is the area of Immigration law that is undergoing rapid and vast changes. Just recently the Trump Administration announced that it will tighten the rules of qualifying for asylum again: now, a person who was traveling through other countries on the way to the US will be disqualified from asylum in the US unless narrow exceptions apply.
These are the exceptions:
A person was trafficked into the US
If the country the migrant passed through did not sign one of the major international treaties that govern how refugees are managed: 1951 Convention on Status of Refugees, 1967 Protocol; and CAT convention.
If an asylum-seeker sought protection in a country but was denied.
The new regulations govern those who enter or attempt to enter the US at the “southern border”.
Notably, people who will be barred from requesting asylum due to these new regulations may still apply for withholding of removal or CAT. However, the screening for these applications will use a higher standard of fear than asylum. A negative finding of reasonable fear will be subject to a court’s review.
As a result of these new changes, more people, and almost all Central American families will be barred from claiming asylum in the US. They will also be subject to expedited removal proceedings: removal proceedings where one does not see a judge and the removal order is issued at the border by the government agents. An expedited removal order bars one from coming back to the US for 5 years. A person who disobeys such an order and enters the US illegally will be subject to a permanent bar.
An application for adjustment of status will not be approved if an applicant does not present a valid I693 form, medical exam. The medical exam itself is a pretty basic examination of one’s health condition, and even if a person has certain health issues, there is a waiver available. But what is hard is to comply correctly with constantly changing requirements for the form submission.
Starting November 1, 2018, all forms I 693 will be valid only if the doctors signed them within 60 days of the submission of the form to USCIS and USCIS adjudicated the case within 2 years of the signature.
Note: the form I693 does not have to be filed together with the AOS package. It can be brought to the interview or submitted after a request for more evidence.
If the I 693 form was submitted before November 1, 2018, then the form would be valid if
The civil surgeon signs Form I-693 more than 60 days before the applicant files the underlying benefit application with USCIS, but the applicant submits Form I-693 to USCIS no more than one year after the civil surgeon signed Form I-693; and USCIS issues a decision on the underlying benefit application no more than one year after the date the applicant submitted Form I-693 to USCIS.
OR
The civil surgeon signs Form I-693 no more than 60 days before the applicant files the underlying benefit application with USCIS; and USCIS issues a decision on the underlying benefit application no more than two years after the date of the civil surgeon’s signature.
OR
The civil surgeon signs Form I-693, and the applicant submits Form I-693, after the applicant files the benefit application with USCIS; and USCIS issues a decision on the underlying benefit application no more than two years after the date of the civil surgeon’s signature.
In all cases, a Form I-693 submitted to USCIS more than one year after the date of the civil surgeon’s signature is insufficient for evidentiary purposes as of the time of its submission to USCIS.
The best practice is to obtain the form at the interview: since the notice for the interview comes early (about a month before the interview), it is usually enough time to obtain the form and bring to the interview.
If you have questions regarding AOS procedures in the US, you can book a consultation here: https://www.shautsova.com/appointments/immigration-lawyer-request.html
DACA was restored….not so fast. On August 17, 2018 the same court that previously ordered to restore the program fully, including the part of it that used to provide advance parole was again stayed by the same court. NAACP v. Trump, 8/17/18.
What happened was that the government decided to appeal Court’s August 3rd order regarding the full restoration of the program, and filed a motion to clarify the order and motion to stay. The Plaintiffs in the case agreed that the stay will be appropriate with regard to the new applications, hence the stay was granted.
It means that those who hold DACA cards that are expiring will be able to file the renewal applications, but no new applications and no applications for advance parole will be accepted.
Recently, Trump administration started implementing new Immigration policies which construe Immigration laws stricter and with greater negative consequences for the non-residents. For example, several months ago, USCIS announced that the D/S (duration of status) exception of unlawful presence for M, F and J students will be abolished. Meaning, that these visa holders will start accumulating unlawful presence as soon as their program/status expires, and not only when a judge or USCIS determined that their status was “stopped.” This new policy announcement was in conflict with the existing law allowing F and M students to apply for reinstatement of status within 5 months of loss of such status, which would negate any determination of “unlawful presence.”
As a result, USCIS eventually changed its policy and the final version of it states that no unlawful presence will be accumulated if the person in F or M status filed a subsequently approved application for reinstatement of status. The new policy is as such:
F, J, or M nonimmigrants who failed to maintain their nonimmigrant status7 before August 9, 2018 start accruing unlawful presence based on that failure on August 9, 2018,8 unless the alien had already started accruing unlawful presence on the earliest of the following:
The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
The day after the Form I-94, Arrival/Departure Record, expired, if the F, J, or M nonimmigrant was admitted for a date certain; or
The day after an immigration judge ordered the alien excluded, deported or removed (whether or not the decision is appealed).
F, J, or M nonimmigrants who failed to maintain nonimmigrant status on or after August 9, 2018 An F, J, or M nonimmigrant begin accruing unlawful presence, due to a failure to maintain his or her status on or after August 9, 2018, on the earliest of any of the following:
The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity or the day after he or she engages in an unauthorized activity;
The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).
Significantly, nonimmigrants who are not issued a Form I-94, Arrival/Departure Record, are treated as nonimmigrants admitted for D/S (as addressed in Chapter 40.9.2(b)(1)(E)(ii)) for purposes of determining unlawful presence.
Trump, as promised, signed an Executive Order stopping Family separation on the Southern Border. The Order, however, protects families from separation for 20 days only. In addition, the “zero tolerance” policy stays in place.
The order directs other agencies, including the Pentagon, to take steps to find places to house family units.
The order specifies that migrants entering the US with children will not be kept together if there’s a fear for the child’s welfare. Families will also be prioritized in the adjudication process.
It is anticipated that the order will be challenged. It presents a new ground to challenge prolonged family detention.
Major changes are coming to the Immigration filed and how the laws are implemented. For almost two decades, students admitted on F, J, and M programs were admitted for Duration of Status (D/S) and were not acquiring unlawful presence if they overstayed their visas unless an Immigration Judge or a DHS made a determination that their status was terminated.
Previously, for example, a J1 student who came on a Work and Travel program and overstayed her visa, would not face the 3/10 year unlawful presence bars if she later left the US and applied for, let’s say an Immigrant visa. The amount of time that was overstayed would not matter. Now, however, DHS made it clear, that even those admitted for Duration of Status will be accumulating the unlawful presence time after their authorized stay expires (stay including the authorized periods that are grunted to students after the expiration of their programs which is 60 days for F students and 30 days for J students).
It means that those who overstay their student visas, dispte the D/S admission will face 3/10 unlawful presence bars and will have to take this into consideration when making decisions about applying for reinstatement, changing status or returning back home. A person who is subject to an unlawful presence bar must receive a waiver to come back to the US before the ban expires.
The new calculation of unlawful presence will come into effect on August 9, 2018. Prior to this date, the old rule is in effect.
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